NO. PD-1067-15 

IN THE 

COURT OF CRIMINAL APPEALS OF TEXAS 

EX PARTE JAMES RICHARD “RICK” PERRY, 

Appellant

________________________________________________________ 

On Appeal from the 390th Judicial District Court, 

Travis County, Texas, Cause No. D-1-DC-14-100139 

________________________________________________________ 

APPELLANT’S BRIEF ON THE MERITS ADDRESSING 

THE STATE’S PETITION FOR DISCRETIONARY REVIEW

________________________________________________________ 

THE BUZBEE LAW FIRM 

Anthony G. Buzbee 

State Bar No. 24001820 

JPMorgan Chase Tower 

600 Travis Street, Suite 7300 

Houston, Texas 77002 

Tbuzbee@txattorneys.com 

Telephone: 713-223-5393 

Facsimile: 713-223-5909 

BAKER BOTTS L.L.P. 

Thomas R. Phillips 

State Bar No. 00000102 

98 San Jacinto Blvd., Suite 1500 

Austin, Texas 78701-4078 

tom.phillips@bakerbotts.com 

Telephone: 512-322-2565 

Facsimile: 512-322-8363 

BOTSFORD & ROARK 

David L. Botsford 

State Bar No. 02687950 

1307 West Ave. 

Austin, Texas 78701 

dbotsford@aol.com 

Telephone: 512-479-8030 

Facsimile: 512-479-8040 

ORAL ARGUMENT PREVIOUSLY SCHEDULED BY THE COURT 

PD-1067-15

COURT OF CRIMINAL APPEALS

AUSTIN, TEXAS

Transmitted 10/21/2015 9:09:44 PM

Accepted 10/22/2015 8:12:16 AM

ABEL ACOSTA

CLERK
i 

Identity of Judge, Parties, and Counsel 

The following is a complete list of the names and addresses of all parties and 

counsel in this case. 

Trial Judge: Honorable Bert Richardson, sitting by appointment; 

Court of Criminal Appeals, Supreme Court Building, 201 West 14th 

Street, Austin, Texas, 78701. 

Appellant: Former Governor James Richard “Rick” Perry, c/o 

Anthony G. Buzbee, JPMorgan Chase Tower, 600 Travis Street, Suite 

7300, Houston, Texas 77002. 

Appellant’s Counsel: Anthony G. Buzbee, JPMorgan Chase Tower, 

600 Travis Street, Suite 7300, Houston, Texas 77002; Thomas R. 

Phillips, 98 San Jacinto Blvd., Suite 1500, Austin, Texas 78701-4078; 

and David L. Botsford, 1307 West Avenue, Austin, Texas, 78701 

(Lead Counsel on Appeal). 

State of Texas: Attorney Pro Tem Michael McCrum, 700 N. Saint 

Mary’s Street, Suite 1900, San Antonio, Texas 78205; Assistant 

Attorney Pro Tem David Gonzalez, 206 East 9th Street, Suite 1511, 

Austin, Texas, 78701. 
ii 

Table of Contents 

Identity of Judge, Parties, and Counsel ...................................................................... i

Index of Authorities ................................................................................................. iv

Statement of the Case ................................................................................................. 1

Grounds for Review ................................................................................................... 3

Statement of the Facts ................................................................................................ 4

A. Proceedings in the district court ............................................................ 4

B. B. Proceedings in the court of appeals .................................................. 6

Summary of the Argument ....................................................................................... 10

Argument.................................................................................................................. 12

A. Introduction ......................................................................................... 12

B. The court of appeals opinion correctly analyzed and decided 

Governor Perry’s First Amendment challenges .................................. 13

1. First Amendment Principles ..................................................... 13

2. The Statutory Framework ......................................................... 15

3. The court of appeals was faithful to this Court’s binding 

precedents .................................................................................. 18

4. Section 36.03(a)(1), as it incorporates the definition of 

“coercion” from Section 1.07(a)(9)(F), implicates the 

First Amendment....................................................................... 20

5. The State’s arguments that the statutes do not implicate 

the First Amendment are without merit .................................... 20

a. The State’s cases are distinguishable ............................. 21

b. The court of appeals was correct that Governor 

Perry did not lose his First Amendment rights by 

holding public office ....................................................... 25
iii 

6. Section 36.03(a)(1), as it incorporates the definition of 

“coercion” from Section 1.07(a)(9)(F), is a content-based 

restriction on speech.................................................................. 31

7. Section 36.03(a)(1), as it incorporates the definition of 

“coercion” from Section 1.07(a)(9)(F), fails to satisfy 

“strict scrutiny” ......................................................................... 33

C. Even if the court of appeals erred in its reasoning, its judgment 

was correct for other reasons. .............................................................. 35

1. Section 36.03(a)(1), as it incorporates the definition of 

“coercion” from Section 1.07(a)(9)(F), is overbroad ............... 35

2. The statutory scheme is facially void for vagueness ................ 46

Prayer for Relief ....................................................................................................... 52

Certificate of Compliance ........................................................................................ 54

Certificate of Service ............................................................................................... 54
iv 

Index of Authorities 

Page(s) 

CASES

All. to End Repression v. City of Chicago, 

742 F.2d 1007 (7th Cir. 1984) .................................................................................................37 

Ashcroft v. A.C.L.U., 

535 U.S. 564 (2002) .................................................................................................................32 

Ashcroft v. Am. Civil Liberties Union, 

542 U.S. 656 (2004) ...........................................................................................................14, 15 

Bd. v. State, 

No. 03-96-00024-CR, 1998 WL 271043 (Tex. App.—Austin May 29, 1998, 

pet. ref’d) (not designated for publication) ..............................................................................22 

Bond v. Floyd, 

385 U.S. 116 (1966) .................................................................................................................27 

Broadrick v. Oklahoma, 

413 U.S. 601 (1973) ...........................................................................................................43, 44 

Brown v. Entm’t Merchants Ass’n, 

131 S. Ct. 2729 (2011) .......................................................................................................13, 33 

Carey v. Brown, 

447 U.S. 455 (1980) .................................................................................................................24 

City of Seattle v. Ivan, 

856 P.2d 1116 (Wash. App. 1993) ...........................................................................................38 

Colautti v. Franklin, 

439 U.S. 379 (1979) .................................................................................................................49 

Collection Consultants, Inc. v. State, 

556 S.W.2d 787 (Tex. Crim. App. 1977).................................................................................42 

Connick v. Myers, 

461 U.S. 138 (1983) .................................................................................................................26 

Crouch v. Civil Serv. Comm’n of Tex. City, 

459 S.W.2d 491 (Tex. Civ. App.—Houston [14th Dist.] 1970, writ ref’d n.r.e.) ....................50 
v 

Duncantell v. State, 

230 S.W.3d 835 (Tex. App.—Houston [14th Dist.] 2007, pet. ref’d) ...............................22, 23 

Ely v. State, 

582 S.W.2d 416 (Tex. Crim. App. 1979).................................................................................47 

Ex parte Lo, 

424 S.W.3d 10 (Tex. Crim. App. 2013)........................................................................... passim

Ex parte Thompson, 

442 S.W.3d 325 (Tex. Crim. App. 2014)......................................................................... passim

Garcetti v. Ceballos, 

547 U.S. 410 (2006) .................................................................................................................26 

Garrison v. La., 

379 U.S. 64 (1964) ...................................................................................................................41 

Gooding v. Wilson, 

405 U.S. 518 (1972) .................................................................................................................48 

Grayned v. Rockford, 

408 U.S. 104 (1972) .................................................................................................................47 

Jenevein v. Willing, 

493 F.3d 551 (5th Cir. 2007) ...................................................................................................27 

Johanns v. Livestock Mktg. Ass’n, 

544 U.S. 550 (2005) ...........................................................................................................28, 29 

Kramer v. Price, 

712 F.2d 174 (5th Cir. 1983) ...................................................................................................47 

Long v. State, 

931 S.W.2d 285 (Tex. Crim. App. 1991).....................................................................47, 48, 49 

McIntyre v. Ohio Elections Comm’n, 

514 U.S. 334 (1995) .................................................................................................................13 

Meyer v. Grant, 

486 U.S. 414 (1988) ...........................................................................................................13, 41 

N.A.A.C.P v. Claiborne Hardware Co., 

458 U.S. 886 (1982) .....................................................................................................23, 24, 37 

N.Y. Times Co. v. Sullivan, 

376 U.S. 254 (1964) .................................................................................................................13 
vi 

Olivas v. State, 

203 S.W.3d 341 (Tex. Crim. App. 2006)...........................................................................20, 50 

Org. for a Better Austin v. Keefe, 

402 U.S. 415 (1971) ...........................................................................................................24, 30 

Papachristou v. City of Jacksonville, 

405 U.S. 156 (1971) .................................................................................................................47 

People v. Iboa, 

207 Cal. App. 4th 111 (2012) ..................................................................................................39 

Phillips v. State, 

401 S.W.3d 282 (Tex. App.—San Antonio 2013, pet. ref’d) ............................................30, 40 

Pleasant Grove City v. Summum, 

555 U.S. 460 (2009) ...........................................................................................................28, 29 

Puckett v. State, 

801 S.W.2d 188 (Tex. App.—Houston [14th Dist.] 1990, pet. ref’d) .........................21, 22, 42 

R.A.V. v. City of St. Paul, 

505 U.S. 377 (1992) .....................................................................................................13, 19, 33 

Reed v. Town of Gilbert, Ariz., 

135 S. Ct. 2218 (2015) .............................................................................................................32 

Reno v. Am. Civil Liberties Union, 

521 U.S. 844 (1997) .................................................................................................................15 

Roberts v. State, 

278 S.W.3d 778 (Tex. App.—San Antonio 2008, pet. ref’d) ............................................42, 51 

Sanchez v. State, 

995 S.W.2d 677 (Tex. Crim. App. 1999)...............................................................24, 25, 36, 42 

Schaumburg v. Citizens for a Better Env’t, 

444 U.S. 620 (1980) .................................................................................................................43 

Sorrell v. IMS Health, 

131 S.Ct. 2653 (2011) ........................................................................................................13, 33 

State v. Hanson, 

793 S.W.2d 270 (Tex. App.—Waco 1990, no pet.) .........................................37, 45, 46, 48, 51 

State v. Johnson, 

___ S.W.3d ___, No. PD-0228-14, 2015 WL 5853115 (Tex. Crim. App. 

October 7, 2015) ................................................................................................................18, 19 
vii 

State v. Pauling, 

69 P.3d 331 (Wash. 2003)........................................................................................................39 

State v. Robertson, 

649 P.2d 569 (Or. 1982) ..........................................................................................................38 

State v. Strong, 

272 P.3d 281 (Wash. App. 2012) .............................................................................................36 

State v. Weinstein, 

898 P.2d 513 (Ariz. Ct. App. 1995) ...................................................................................37, 38 

Tobias v. State, 

884 S.W.2d 571 (Tex. App.—Fort Worth 1994, pet. ref’d) ..................................30, 34, 42, 51 

U.S. ex rel. Holder v. Circuit Court of 17th Judicial Circuit, 

624 F. Supp. 68 (N.D. Ill. 1985) ........................................................................................36, 38

United States v. Coss, 

677 F.3d 278 (6th Cir. 2012) ...................................................................................................36 

United States v. Jackson, 

180 F.3d 55 (2d Cir. 1999).................................................................................................37, 39 

United States v. Playboy Entm’t Grp., Inc., 

529 U.S. 803 (2000) ...........................................................................................................13, 33 

United States v. Stevens, 

559 U.S. 460 (2010) ...............................................................................................14, 20, 44, 45 

United States v. Velasquez, 

772 F.2d 1348 (7th Cir. 1985) .................................................................................................37 

United States v. Williams, 

553 U.S. 285 (2008) ...........................................................................................................14, 26 

Van Arsdel v. Tex. A&M Univ., 

628 F.2d 344 (5th Cir. 1980) ...................................................................................................50 

Virginia v. Black, 

538 U.S. 343 (2003) .....................................................................................................13, 23, 36 

Virginia v. Hicks, 

539 U.S. 113 (2003) .................................................................................................................43 

Walker v. Tex. Division, Sons of Confederate Veterans, Inc., 

135 S. Ct. 2239 (2015) .............................................................................................................28 
viii 

Wash. State Grange v. Wash. State Republican Party, 

552 U.S. 442 (2008) .................................................................................................................14 

Watts v. United States, 

394 U.S. 705 (1969) .....................................................................................................20, 23, 36 

Whimbush v. People, 

869 P.2d 1245 (Colo. 1994) .....................................................................................................38 

Willborn v. Deans, 

240 S.W.2d 791 (Tex. Civ. App.—Austin 1951, writ ref’d n.r.e.) ..........................................50 

Wood v. Georgia, 

370 U.S. 375 (1962) .................................................................................................................27 

Wurtz v. Risley, 

719 F.2d 1438 (9th Cir. 1983) ...........................................................................................36, 38

STATUTES

Tex. Penal Code § 1.07(a)(9)(F) ............................................................................................ passim 

Tex. Penal Code § 1.07(a)(41) .......................................................................................................17 

Tex. Penal Code § 1.07(a)(48) .....................................................................................21, 39, 43, 51 

Tex. Penal Code § 36.03(a)(1) ............................................................................................... passim 

Tex. Penal Code § 36.03(c) ............................................................................................................18 

Tex. Penal Code § 36.06(a) ............................................................................................... 39, 42, 52 

Tex. Penal Code § 42.07(a)(2) .......................................................................................................42 

OTHER AUTHORITIES

Tex. R. App. P. 47.7.......................................................................................................................22 

LAWRENCE H. TRIBE, AMERICAN CONSTITUTIONAL LAW § 12-32 (2d ed. 1988) ..........................14 

U.S. Const. amend. I ......................................................................................................................13 
1 

TO THE COURT OF CRIMINAL APPEALS OF TEXAS: 

COMES NOW Appellant, James Richard “Rick” Perry (Governor Perry), 

and pursuant to the Court’s Order of October 7, 2015, presents his brief on the 

merits addressing the State’s petition for review, and would respectfully show this 

Honorable Court the following: 

Statement of the Case 

In August 2014, a two-count indictment was returned against Governor 

Perry for violating Sections 36.03(a)(1), 1.07(a)(9)(F) (Count II, coercion of public 

servant), and 39.02(a)(2) (Count I, abuse of official capacity) of the Texas Penal 

Code by threatening to exercise, and then actually exercising, the authority to veto 

appropriations vested in the Governor by the Texas Constitution. CR4-5. Ten 

days after the indictment, Governor Perry filed an application for pretrial writ of 

habeas corpus contesting the legality of his restraint and seeking to bar his 

prosecution on both counts, primarily on constitutional grounds. CR11-70. 

After the district court denied relief, CR464-84, Perry appealed to the Third 

Court of Appeals, which ordered expedited briefing and denied the State’s request 

for oral argument. In a published opinion, that court held that all nine constitutional 

challenges to Count I and seven constitutional challenges to Count II were not 

cognizable because they were not “facial,” merely “as applied.” Slip Op. at 10-32. 

The court then granted relief on Count II because the statute was facially invalid 
2 

under the First Amendment. Id. at 32-97. The court thus found it unnecessary to 

address Perry’s cognizable, facial vagueness challenge to the statute. Id. at 97. 

Governor Perry filed his petition for discretionary review on August 18, 

2015, presenting four grounds challenging the decision that Count I was not 

cognizable on pretrial habeas. Two weeks later, the State Prosecuting Attorney 

filed her petition for discretionary review attacking the court of appeals’ decision 

that Count II was facially invalid under the First Amendment. On October 7, 2015, 

this Court granted both petitions, set an expedited briefing schedule, and ordered 

separate arguments on each petition. 
3 

Grounds for Review 

1. Did the court of appeals incorrectly conflate the tests for First Amendment 

overbreadth and traditional First Amendment facial unconstitutionality? 

2. Applying the definition of “coercion” from Tex. Penal Code § 1.07(a)(9)(F), 

does the Coercion of a Public Servant statute ban a substantial amount of 

constitutionally protected speech relative to its plainly legitimate sweep? 
4 

Statement of Facts 

A. Proceedings in the district court 

On August 15, 2014, a Travis County grand jury returned a two-count 

indictment against then-Governor James Richard “Rick” Perry alleging that 

Governor Perry broke the law by threatening to veto an item of appropriations and 

subsequently issuing a veto. CR4-5.1 

Count II, alleging that Governor Perry committed Coercion of a Public 

Servant under Sections 36.03(a)(1) and 1.07(a)(9)(F) of the Texas Penal Code, 

states: 

Beginning on or about June 10, 2013, and continuing through June 14, 

2013, in the County of Travis, Texas, by means of coercion, to wit: 

threatening to veto legislation that had been approved and authorized 

by the Legislature of the State of Texas to provide funding for the 

continued operation of the Public Integrity Unit of the Travis County 

District Attorney’s Office unless Travis County District Attorney 

Rosemary Lehmberg resigned from her official position as elected 

District Attorney, James Richard “Rick” Perry, intentionally or 

knowingly influenced or attempted to influence Rosemary Lehmberg, 

a public servant, namely, the elected District Attorney for Travis 

County, Texas, in the specific performance of her official duty, to wit: 

the duty to continue to carry out her responsibilities as the elected 

District Attorney for the county of Travis, Texas through the 

completion of her elected term of office, and the defendant and 

Rosemary Lehmberg were not members of the same governing body 

of a governmental entity, such offense having been committed by 

defendant, a public servant, while acting in such an official capacity 

 

1

 Count I, which is not implicated by either of the grounds for review in the State’s petition 

for discretionary review, alleges that Governor Perry committed Abuse of Official Capacity 

under Section 39.02(a) of the Texas Penal Code. CR4-5. The gist of this count is that Governor 

Perry “misused” government property by vetoing funding for the Travis County Public Integrity 

Unit (“PIU”). CR4-5. 
5 

as a public servant. 

CR5. The gist of this charge is that he attempted to “influence” Travis County 

District Attorney Rosemary Lehmberg by threatening to veto funding for the PIU. 

Id.2

 

On August 19, 2014, Governor Perry was processed by the Travis County 

Sheriff and released on bond pending trial. CR8-10. 

On August 25, 2014, Governor Perry filed an Application for Pretrial Writ 

of Habeas Corpus (the “Application”). He challenged the legality of his restraint 

and specifically sought “to bar the prosecution” on both counts. CR11, 49. The 

Application presented eleven constitutional claims as to Count II, CR17-19.3

The district court gave the State almost three months to respond, which it did 

on November 7, 2014. CR274. Governor Perry filed a reply on November 17, 

2014. CR391. 

Fourteen nationally-known constitutional scholars filed an amicus curiae

brief in support of Governor Perry’s Application. CR367-90. The amici supported 

Governor Perry’s prayer for dismissal of Count II on the ground that the statutory 

provisions, read together, criminalize speech protected by the First Amendment 

 

2

 In April 2015, the State conceded that the threat of the veto was “not a true threat.” See

April 27, 2015 Supplemental Clerk’s Record at 88. Furthermore, the district court has interpreted 

Count II as alleging a Class A misdemeanor offense, as opposed to a third degree felony as 

contended by the State. CR441. 

3

 These eleven claims are also set forth in the court of appeals opinion at 7-8. 
6 

and are facially invalid. CR384-89. 

On January 27, 2015, the district court denied the Application without a 

hearing. CR464-84. The court rejected Governor Perry’s facial challenges to 

Section 36.03(a)(1), as it incorporates the definition of “coercion” contained in 

Section 1.07(a)(9)(F).4

 The district court, “in an abundance of precaution,” CR475, 

applied a strict scrutiny analysis because of the “presumption of invalidity” 

associated with a content based restriction on speech, citing Ex parte Lo, 424 

S.W.3d 10, 14-18 (Tex. Crim. App. 2013). CR475. Despite this heightened 

standard, the court held that the provisions were not facially unconstitutional under 

the First Amendment or the Fourteenth Amendment. CR474-84.5

 

B. Proceedings in the court of appeals 

Governor Perry timely appealed to the Third Court of Appeals. The 

constitutional scholars (with some additions) who had filed an amicus curiae brief 

in the district court renewed their support of Governor Perry’s prayer for dismissal 

of Count II. Amici urged the same two grounds as it had in the district court. On 

 

4

 These challenges were Governor Perry’s claims 1-4 as to Count II. 

5

 The court ruled that the remainder of Governor Perry’s constitutional challenges to both 

counts were not cognizable in a pretrial habeas proceeding because they supposedly raised 

merely as-applied, rather than facial, constitutional challenges. CR468-73. While the court 

acknowledged that these arguments were “compelling” and “may be relevant at a later time,” it 

declined to reach their merits on the mistaken belief that “the court’s hands are tied” under 

existing case law regarding cognizability. CR472-73. Furthermore, the district court held that 

Governor Perry’s one statutory challenge to Count II was not cognizable in a pretrial habeas 

proceeding, CR482, but the district court sustained this same statutory challenge in ruling on 

Governor Perry’s motion to quash. CR459-62 (sustaining challenge to Count II for failing to 
7 

July 24, 2015, the court of appeals issued an opinion and judgment. 

The court of appeals began its analysis by construing the challenged statutes, 

noting that “it is impossible to determine whether a statute reaches too far without 

first knowing what the statute covers.” Slip Op. at 39. The court’s extensive 

analysis, id. at 39-61, led it to conclude that Section 36.03(a)(1) was a far more 

expansive criminal prohibition on speech than the district court had believed. Id. at 

60. It also concluded that “it is this vast breadth that causes section 36.03(a)(1), as it 

incorporates paragraph (F), to impinge upon substantial amounts of First 

Amendment-protected speech among Texas’s public servants.” Id. at 60-61. 

Then, the court considered whether the speech prohibited by the statutory 

scheme was in fact protected by the First Amendment. Id. at 61 et seq. Applying 

recognized First Amendment case law, it concluded that the statutory scheme 

criminalized “core political speech,” which includes “speech by public servants 

regarding their official actions that is aimed at prompting other public servants to 

undertake official action.” Id. at 62. Because the First Amendment’s protections 

are at their “zenith” for such speech, id., the court rejected the State’s arguments 

that public servants like Governor Perry have either no First Amendment rights at 

all or limited rights that can be restricted by law. Id. at 63-71. The court also 

concluded that none of the historical exceptions to First Amendment protections, 

 

negate statutory exception and granting State leave to amend). 
8 

such as the exception for speech that is integral to criminal conduct, apply here. 

Id. at 71-85.6

Next, the court addressed whether the statutory scheme’s “impingement” on 

First Amendment rights “can be justified.” Id. at 85. Because Section 36.03(a)(1) 

“targets speech having a specified content (communicated intent to inflict one of 

the six categories of harms enumerated in the ‘coercion’ definition) based on the 

communicative impact the threat has or is intended to have (bringing about certain 

specified conduct of a public servant),” the court concluded that it “must be 

classified as a ‘content-based’ speech prohibition—on its face.” Id. at 85-86. Thus, 

the State bore the burden to rebut the presumption of invalidity by showing that the 

statutory scheme satisfies the applicable “strict scrutiny” standard. Id. at 86. 

Accordingly, the State had to prove that the statutory scheme “[is] 

(1) necessary to serve (2) a compelling state interest and (3) [is] narrowly drawn 

(i.e., that it employ[s] the least restrictive means to achieve its goal and there [is] a 

close nexus between the government’s compelling interest and the restriction).” 

Id. Although the court “assum[ed] without deciding” that the State’s “asserted 

interests would rise to the level of ‘compelling,’“ it concluded that “section 

 

6

 The court concluded that “[t]hese kinds of threats are ‘speech incident to criminal 

conduct’ only if the basic workings of government are considered criminal conduct, a 

proposition we cannot sanction.” Slip Op. at 82. The court noted that the State’s attempt to 

characterize “these threats as ‘coercive’“ so as to “displace them from the First Amendment 

protections” ran afoul of Supreme Court precedent that “‘offensive’ and ‘coercive’ speech [is] 

nevertheless protected by the First Amendment.” Id. at 82 & n.269. 
9 

36.03(a)(1), as it incorporates paragraph (F)” is not “‘narrowly drawn’ to achieve 

those objectives.” Id. at 87. The court reasoned that it “begins to strain even 

rational-basis scrutiny to conclude that a statute that goes as far as to criminalize a 

public servant’s threat merely to lawfully exercise his delegated powers as a 

related consequence of another public servant’s failure or refusal to comply with a 

lawful demand for action would protect ‘the integrity’ of government or prevent 

‘interference’ with public servants’ performance of their delegated functions.” Id.

at 87-88. Indeed, “[i]f anything, the effect of the statutes in those circumstances 

would be to undermine these interests by criminalizing much of the ordinary dayto-day workings of government. And to the extent the unique circumstances of the 

judicial process might justify the prosecution as it would apply in that context,” the 

statutory “proscription extends far more broadly.” Id. at 88. 

The court also concluded that Section 36.03(a)(1), as it incorporates 

1.07(a)(9)(F), was not “necessary” to effectuate the State’s interests. Id. Noting 

Governor Perry’s comparisons to this Court’s opinion in Ex parte Lo, 424 S.W.3d 

10 (Tex. Crim. App. 2013), the court “agree[d] that while some applications of 

section 36.03(a)(1) and paragraph (F) may be permissible or justified under the 

First Amendment, Lo’s rationale would be an additional reason for invalidating the 

statute as to other applications.” Id. at 88-89. 

The court then addressed whether the “‘alarming’ breadth” of the statutory 
10 

scheme, “reaching even a public servant’s declared intention to take or withhold 

action lawfully, aimed at bringing about another public servant’s lawful action that 

the first public servant could lawfully demand or require,” id. at 88, could be saved 

by any “reasonable narrowing construction.” Id. at 91. Finding a plausible 

narrowing construction to be legally untenable, id. at 89-96, the court held that 

“section 36.03(a)(1), as it incorporates paragraph (F) of the Penal Code’s 

‘coercion’ definition, is facially invalid under the First Amendment and is thus 

unenforceable.” Id. at 97. And “[b]ecause this holding entitles Perry to habeas 

relief with respect to Court II of the indictment,” the court decided that it “need not 

address his remaining arguments.” Id. 

Summary of the Argument 

The court of appeals correctly analyzed and decided Governor Perry’s First 

Amendment challenges to Section 36.03(a)(1), as it incorporates the definition of 

“coercion” in Section 1.07(a)(9)(F): a “threat, however communicated” “to take or 

withhold action as a public servant.” The court properly concluded that the statutory 

scheme criminalizes all statements by public servants that threaten lawful action and 

merely have the effect of influencing another public servant. The court properly 

found this scheme criminalized only speech, not conduct. And it also properly 

concluded that the statutory scheme penalizes not unprotected speech, but “core 

political speech” for which First Amendment’s protections are at their “zenith.” 
11 

The State’s arguments that the statutory scheme does not implicate the First 

Amendment were properly rebuffed by the court of appeals. The speech 

criminalized by the statutes does not fall into any historical exception to the First 

Amendment. The statutory scheme does not require a “true threat:” “statements 

where the speaker means to communicate a serious expression of an intent to 

commit an act of unlawful violence.” Nor does it require a threat of “unlawful” 

action, and it does not apply to speech that is integral to criminal conduct. 

The court of appeals also properly rejected the State’s arguments that 

Governor Perry’s speech was “governmental speech” exempt from the protections 

of the First Amendment and that he himself has no First Amendment rights 

because he was a public servant. 

Importantly, the appeals court faithfully followed this Court’s prior opinions 

by concluding that the statutory scheme was a content-based restriction on First 

Amendment rights. Recognizing the presumption of invalidity and corresponding 

strict scrutiny standard that apply to content-based restrictions, the appeals court 

properly found that the statutory scheme was not necessary to serve any state 

interests. And before invalidating the statutory scheme, the appeals court properly 

examined whether the breadth of its proscriptions are capable of any narrowing 

construction. Simply stated, the court of appeals reached an undeniably correct 

result, even without addressing Governor Perry’s facial vagueness arguments. 
12 

Argument 

A. Introduction 

The State’s grounds for review ask whether the court of appeals erred in 

holding that Section 36.03(a)(1), as it incorporates the definition of “coercion” 

contained in Section 1.07(a)(9)(F), “is facially unconstitutional under the First 

Amendment overbreadth doctrine.” State PDR at 2. 

Governor Perry urges this Court to affirm the judgment of the court of 

appeals on precisely the grounds set forth in the court of appeals’ opinion. It 

correctly mirrors the analysis used by this Court in its recent pronouncements, and 

accurately analyzes the statutory scheme and legal issues attendant to its 

conclusion that “section 36.03(a)(1), as it incorporates paragraph (F) of the Penal 

Code’s ‘coercion’ definition, is facially invalid under the First Amendment and is 

thus unenforceable.” Slip Op. at 97. Additionally, since the court of appeals 

declined to address Governor Perry’s facial vagueness claims, this Court should 

consider whether the grant of discretionary review was improvidently granted 

since, if this Court reverses the court of appeals’ decision on Count II, the merits of 

the unaddressed, cognizable and dispositive facial vagueness challenge will still 

have to be addressed by this Court or the court of appeals. 
13 

B. The court of appeals opinion correctly analyzed and decided 

Governor Perry’s First Amendment challenges 

1. First Amendment Principles 

The First Amendment, which has been incorporated by the Due Process 

Clause of the Fourteenth Amendment to apply to the states, e.g., Virginia v. Black, 

538 U.S. 343, 358 (2003), provides that “Congress shall make no law . . . abridging 

the freedom of speech.” U.S. Const. amend. I. Core political speech, such as the 

alleged statement by Governor Perry that he would exercise his veto power if 

Lehmberg did not resign her office, lies at the very heart of First Amendment 

protection. See McIntyre v. Ohio Elections Comm’n, 514 U.S. 334, 347 (1995) 

(courts must apply “exacting scrutiny” to laws burdening core political speech); 

Meyer v. Grant, 486 U.S. 414, 425 (1988) (First Amendment protection is “at its 

zenith” for core political speech). This heightened protection stems from our 

“profound national commitment” to the principle that “debate on public issues 

should be uninhibited, robust, and wide-open.” N.Y. Times Co. v. Sullivan, 376 

U.S. 254, 270 (1964). “Content-based regulations are presumptively invalid, and it 

is rare that a regulation restricting speech because of its content will ever be 

permissible.” Ex parte Thompson, 442 S.W.3d 325, 348 (Tex. Crim. App. 2014) 

(citing Sorrell v. IMS Health, 131 S.Ct. 2653, 2667 (2011) (quoting R.A.V. v. City 

of St. Paul, 505 U.S. 377, 382 (1992)) and Brown v. Entm’t Merchants Ass’n, 131 

S. Ct. 2729 at 2738 (2011) (citing United States v. Playboy Entm’t Grp., Inc., 529 
14 

U.S. 803, 818 (2000); Ex parte Lo, 424 S.W.3d at 15. 

To succeed in a typical facial attack, a defendant must establish “that no set 

of circumstances exists under which [the statute] would be valid,” or that the 

statute lacks any “plainly legitimate sweep.” United States v. Stevens, 559 U.S. 

460, 472 (2010) (citations and quotation omitted). However, in the context of the 

First Amendment, the Supreme Court recognizes “a second type of facial 

challenge,” whereby a law may be invalidated as overbroad if “a substantial 

number of its applications are unconstitutional, judged in relation to the statute’s 

plainly legitimate sweep.” Id. at 473 (quoting Wash. State Grange v. Wash. State 

Republican Party, 552 U.S. 442, 449 n.6 (2008) (internal quotation marks 

omitted)). Thus, a statute is facially unconstitutional and violates the overbreadth 

doctrine if “it prohibits a substantial amount of protected speech.” United States v. 

Williams, 553 U.S. 285, 292 (2008). A law that is overbroad cannot be validly 

applied against any individual. LAWRENCE H. TRIBE, AMERICAN CONSTITUTIONAL 

LAW § 12-32, 1036 (2d ed. 1988). Courts must not “uphold an unconstitutional 

statute merely because the Government promised to use it responsibly.” 

Thompson, 442 S.W.3d at 350 (quoting Stevens, 559 U.S. at 480). 

In addition, a statute regulating the content of speech is subject to “strict 

scrutiny” and will be invalidated unless it constitutes the “least restrictive means” 

of effectuating a “compelling [state] interest.” Ashcroft v. Am. Civil Liberties 
15 

Union, 542 U.S. 656, 658, 666 (2004); Ex parte Lo, 424 S.W.3d at 19; Ex parte 

Thompson, 442 S.W.3d at 348. A statute that prohibits protected speech “is 

unacceptable if less restrictive alternatives would be at least as effective in 

achieving the legitimate purpose that the statute was enacted to serve,” and “the 

burden is on the Government to prove that the proposed alternatives will not be as 

effective as the challenged statute.” Ashcroft, 542 U.S. at 665 (quoting Reno v. 

Am. Civil Liberties Union, 521 U.S. 844, 874 (1997). 

2. The Statutory Framework 

The first step in evaluating Governor Perry’s facial challenges requires an 

examination of the relevant statutory language. Section 36.03, entitled “Coercion 

of Public Servant or Voter,” provides the following: 

(a) A person commits an offense if by means of coercion he: 

(1) influences or attempts to influence a public servant in a specific 

exercise of his official power or a specific performance of his official 

duty or influences or attempts to influence a public servant to violate 

the public servant’s known legal duty; or 

(2) influences or attempts to influence a voter not to vote or to vote in 

a particular manner. 

(b) An offense under this section is a Class A misdemeanor unless the 

coercion is a threat to commit a felony, in which event it is a felony of the 

third degree. 

(c) It is an exception to the application of Subsection (a)(1) of this section 

that the person who influences or attempts to influence the public servant is 

a member of the governing body of a governmental entity, and that the 

action that influences or attempts to influence the public servant is an 
16 

official action taken by the member of the governing body. For the purposes 

of this subsection, the term “official action” includes deliberations by the 

governing body of a governmental entity. 

 Coercion, as used in Section 36.03(a)(1), is defined in Section 1.07(a)(9) of 

the Texas Penal Code as follows: 

(9) “Coercion” means a threat, however communicated: 

(A) to commit an offense; 

(B) to inflict bodily injury in the future on the person threatened or 

another; 

(C) to accuse a person of any offense; 

(D) to expose a person to hatred, contempt, or ridicule; 

(E) to harm the credit or business repute of any person; or 

(F) to take or withhold action as a public servant, or to cause a public 

servant to take or withhold action. 

 The term “public servant” is defined in Section 1.07(a)(41) of the Texas 

Penal Code as follows: 

(41) “Public servant” means a person elected, selected, appointed, employed, 

or otherwise designated as one of the following, even if he has not yet 

qualified for office or assumed his duties: 

(A) an officer, employee, or agent of government; 

(B) a juror or grand juror; or 

(C) an arbitrator, referee, or other person who is authorized by law or 

private written agreement to hear or determine a cause or controversy; 

or 
17 

(D) an attorney at law or notary public when participating in the 

performance of a governmental function; or 

(E) a candidate for nomination or election to public office; or 

(F) a person who is performing a governmental function under a claim 

of right although he is not legally qualified to do so. 

 The statutory language that forms the basis for Count II is written in broad 

strokes. It begins with Section 36.03(a)(1), which makes it a crime to coerce a 

public servant. An individual commits an offense if he or she, “by means of 

coercion . . . influences or attempts to influence a public servant in a specific 

exercise of his official power or a specific performance of his official duty or 

influences or attempts to influence a public servant to violate the public servant’s 

known legal duty.” Tex. Penal Code § 36.03(a)(1). “Coercion” is then defined in 

the definition section of the Penal Code as “a threat, however communicated,” to 

do six distinct things, including “to take or withhold action as a public servant, or 

to cause a public servant to take or withhold action.” Id. § 1.07(a)(9)(F). “Public 

servant” is also defined broadly to encompass all aspects of state government, 

including any “officer, employee, or agent of government,” “a juror or grand 

juror,” “an arbitrator,” a political candidate, and even “an attorney at law or notary 

public when participating in the performance of a government function.” Id. § 

1.07(a)(41). Against this expansive sweep, the coercion statute contains a single, 

narrow exception, for “member[s] of the governing body of a governmental entity” 
18 

when they take “official action.” Id. § 36.03(c). 

3. The court of appeals was faithful to this Court’s binding 

precedents. 

 The court of appeals’ opinion closely mirrors the structure and legal analysis 

utilized by this Court in Ex parte Lo, supra, Ex parte Thompson, supra, and State 

v. Johnson, ___ S.W.3d ___, No. PD-0228-14, 2015 WL 5853115 (Tex. Crim. 

App. October 7, 2015). That opinion correctly applies well established First 

Amendment jurisprudence from these and other cases. 

Lo involved a pretrial writ of habeas corpus alleging that a specific 

subsection of the felony offense of online solicitation of a minor (Section 

33.0121(b) of the Texas Penal Code) was facially unconstitutional. 424 S.W.2d at 

14-15. Lo determined that the statute was a “content-based” regulation of speech, 

and therefore applied the constitutionally required presumption of invalidity and 

the corresponding “strict scrutiny” test. Id. The Court concluded that the statute is 

“overbroad because it prohibits a wide array of constitutionally protected speech 

and is not narrowly drawn to achieve only the legitimate objective of protecting 

children from sexual abuse.” Id. at 14. 

Thompson also involved a pretrial writ of habeas corpus alleging that a 

specific subsection of the improper photography statute (Section 21.15(b)(1) of the 

Texas Penal Code) was facially unconstitutional in violation of the First 

Amendment. 442 S.W.3d at 331. This Court agreed, holding that the statute was a 
19 

“content-based” regulation of speech that did not satisfy “strict scrutiny” because it 

is not “the least restrictive means of achieving the compelling government interest 

in question.” Id. at 348-349. The Court then, out of “an abundance of caution,” 

engaged in an overbreadth analysis and concluded that the statute was substantially 

overbroad. Id. at 349-351. 

 In Johnson, this Court followed an approach similar Lo and Thompson in 

striking down the flag-destruction statute, Section 42.11 of the Texas Penal Code, 

as facially invalid on its face because it is unconstitutionally overbroad in violation 

of the First Amendment. Johnson, 2015 WL 5853115, at *2. 

 The court of appeals reached the correct result under Lo, Thompson and 

Johnson. As in those cases, the court of appeals determined that the statutory 

scheme was content-based, and then applied “strict scrutiny” to find it facially 

invalid because it was not sufficiently narrowly drawn to achieve any legitimate 

objectives behind them. Thus, far from conflating legal concepts,7

 as the State’s 

petition for discretionary alleges,8

 the court of appeals correctly analyzed the First 

 

7

 In R.A.V. v. City of St. Paul, 505 U.S. 377, 381 n.3 (1992), the Supreme Court granted 

certiorari to examine petitioner’s claim that the St. Paul ordinance “violat[es] overbreadth ... 

principles of the First Amendment. The Court elected not to engage in an traditional overbreadth 

analysis, observing that petitioner had advanced “not just a technical ‘overbreadth” claim—i.e., a 

claim that the ordinance violated the rights of too many third parties,” but also “included the 

contention that the ordinance was ‘overbroad’ in the sense of restricting more speech than the 

Constitution permits, even in its application to him, because it is content based.” The Court 

concluded “that the ordinance is facially unconstitutional in that it prohibits otherwise permitted 

speech solely on the basis of the subjects the speech addresses.” Id. 

8

 The State claims that “whether the statute is content based never enters into overbreadth 
20 

Amendment implications of Section 36.03(a)(1), as it incorporates Section 

1.079(a)(9)(F). 

4. Section 36.03(a)(1), as it incorporates the definition of 

“coercion” from Section 1.07(a)(9)(F), implicates the First 

Amendment. 

 “Coercion” is defined as a “threat,” “however communicated,” to do or 

perform one or more of the six types of actions defined in 1.07(a)(9)(A-F). While 

the term “threat” is not statutorily defined, this Court has previously defined “threat” 

as “a communicated intent to inflict harm or loss on another or on another’s 

property.” Olivas v. State, 203 S.W.3d 341, 345-46 (Tex. Crim. App. 2006). It is 

therefore clear that the Legislature has limited “coercion” to speech, excluding 

conduct from the statute’s purview. Thus, the statute on its face necessarily 

implicates the First Amendment. Watts v. United States, 394 U.S. 705, 706-07 & 

n.* (1969) (written or oral threats “to take the life or to inflict bodily harm upon the 

President” or others in line of succession “makes criminal a form of pure speech”). 

5. The State’s arguments that the statutes do not implicate the 

First Amendment are without merit. 

 The State argues that the court of appeals erred at the outset because 

coercive threats are outside the protection of the First Amendment. This claim is 

 

analysis, State PDR at 5, but this is inaccurate. In United States v. Stevens, 559 U.S. 460 (2010), 

relied upon by the State in its petition, the Supreme Court invalidated the animal cruelty statute 

because it was “substantially overbroad,” 559 U.S. 482, but it did so only after concluding that 

the statute was “presumptively invalid” because it “explicitly regulates expression based on 

content.” Id. at 468. The Court’s overbreadth analysis compared the presumptively 
21 

without merit. 

 In the court of appeals, the State argued that Governor Perry’s speech was 

unprotected because it amounted to a “retaliatory act,” “verbal extortion,” or a 

“quid pro quo threat[] made under a display of authority and power.” St. Br.at 6-7. 

But the sections under challenge criminalize far more than retaliation, extortion, 

and quid pro quo threats. See App.Br. at 10-17. 

 The State reads both statutes in isolation to attempt to negate their actual 

effect. But when Section 36.03(a)(1) is read, as it must be, in conjunction with 

Section 1.07(a)(9)(F), “coercion” need not be illegal, unlawful, tortious, or even a 

“true threat.” Read together, the statutes cannot be read narrowly.9

a. The State’s cases are distinguishable. 

 The cases cited by the State cannot save these statutes from facial invalidity. 

The State’s main authority, Puckett v. State, 801 S.W.2d 188 (Tex. App.—Houston 

[14th Dist.] 1990, pet. ref’d), addressed both facial and as-applied challenges to the 

more narrowly drawn retaliation statute, Section 36.06(a), by a defendant who 

“repeatedly stated in no uncertain terms that he would kill [the arresting officer] 

 

impermissible as opposed to the permissible applications of the statute. 

9

 Section 1.07(a)(9)(F) does not require the prohibited “threat” to be unlawful, and Section 

36.03(a)(1) does not require the “coercion” to be unlawful. Since the term “unlawful” is defined 

by the Penal Code to mean “criminal or tortious or both and includes what would be criminal or 

tortious but for a defense not amounting to justification or privilege,” Tex. Penal Code § 

1.07(a)(48), it necessarily follows that Section 36.03(a)(1), when read in conjunction with 

Section 1.07(a)(9)(F), covers any and all speech that can be construed as a “threat” if it otherwise 

meets the requirements of Section 36.03(a)(1). 
22 

when he got out of jail.” Id. at 194. The court said that “it is clear that these 

statements by [Puckett] could reasonably be interpreted” as a “true threat” 

reflecting an “intent to kill or injure,” and hence not protected speech. Id. 

Similarly, Bd. v. State, No. 03-96-00024-CR, 1998 WL 271043 (Tex. App.—

Austin May 29, 1998, pet. ref’d) (not designated for publication),10 involved a 

challenge to the tampering statute, Section 36.05, in conjunction with the narrower 

definition of “coercion” in Section 1.07(a)(9)(D), which criminalizes a threat “to 

expose a person to hatred, contempt or ridicule.” Id. at *4 (citation and quotation 

omitted). Thus, even if this unpublished opinion had any precedential value, it 

does not apply to the same statutory scheme involved here. Finally, Duncantell v. 

State, 230 S.W.3d 835 (Tex. App.—Houston [14th Dist.] 2007, pet. ref’d), 

involved the rejection of an overbreadth challenge to the “interference with public 

duties” statute, Section 38.15(a)(1) of the Texas Penal Code. The Court found that 

the defendant engaged in conduct which he knew or should have known would 

interrupt, disrupt, impede, or interfere with a peace officer performing a duty 

imposed by law, “such as investigating an accident or arresting a criminal suspect.” 

230 S.W.3d at 844. That, the court held, was “not expressive conduct protected by 

the First Amendment.” Id. (emphasis added). Importantly, the court specifically 

noted that Section 38.15(d) “provides that it is a defense to prosecution under the 

 

10 Board has no precedential value under Tex. R. App. P. 47.7. 
23 

statute if the interruption, disruption, impediment, or interference alleged consists 

of speech only.” Id. at 843 (emphasis added). Accordingly, the court stated “we 

must only examine the interference statute’s limitations on conduct to determine if 

it restricts a substantial amount of constitutionally protected conduct.” Id. at 844-

45 (emphasis added). 

 None of these cases are relevant. Governor Perry was indicted under a 

materially different provision of the Penal Code, Section 36.03(a)(1), in 

conjunction with the broader definition of “coercion” in Section 1.07(a)(9)(F). But 

even if Puckett, Board, and Duncantell supported the State’s markedly narrow 

view of First Amendment protections, they would not bind this Court because they 

would be irreconcilable with the requirement that only “true threats”—which the 

U.S. Supreme Court has defined as “statements where the speaker means to 

communicate a serious expression of an intent to commit an act of unlawful 

violence”—lack First Amendment protection. Black, 538 U.S. at 359 (no 

protection for cross burning that communicates threat of bodily harm or death); see 

also Watts, 394 U.S. at 707-08 (no protection for threat to assassinate the President 

of the United States). 

 Moreover, the State never acknowledges, let alone distinguishes, cases cited 

by Perry and expressly relied on by the court of appeals, like N.A.A.C.P v. 

Claiborne Hardware Co., 458 U.S. 886, 910 (1982), which explained that “speech 
24 

does not lose its protected character . . . simply because it may embarrass others or 

coerce them into action.” (Emphasis added). The facts of Claiborne are 

particularly instructive. There, a civil-rights boycott organizer warned that boycott 

breakers would be “disciplined,” and that “if we catch any of you going into any of 

them racist stores, we’re gonna break your damn neck.” Id. at 902. While such 

statements “might have been understood as inviting an unlawful form of discipline 

or, at least, as intending to create a fear of violence,” id. at 927, they still enjoyed 

First Amendment protection because expression on public issues “has always 

rested on the highest rung of the hierarchy of First Amendment values.” Id. at 913 

(quoting Carey v. Brown, 447 U.S. 455, 467 (1980)); see also Org. for a Better 

Austin v. Keefe, 402 U.S. 415, 419 (1971) (“The claim that . . . expressions were 

intended to exercise a coercive impact on respondent does not remove them from 

the reach of the First Amendment. Petitioners plainly intended to influence 

respondent’s conduct by their activities; that is not fundamentally different from 

the function of a newspaper.” (Emphasis added)). 

 Furthermore, the State relies on language in Sanchez v. State, 995 S.W.2d 

677, 688 (Tex. Crim. App. 1999), noting that “verbal extortion ‘has no more 

constitutional protection than that uttered by a robber while ordering his victim to 

hand over the money.’” St.Br. at 7. But Sanchez—a prosecution for official 

oppression by sexual harassment under Section 39.03(a)(3)—merely analogized 
25 

sexual harassment by a public servant to official extortion and bribery on the 

ground that “the receipt of someone’s submission to sexual conduct” was 

comparable to “the use of official power to obtain a benefit to which the official 

was not otherwise entitled” in the form of “money or tangible property.” 995 

S.W.2d at 688.11 Count II of the indictment does not allege extortion, bribery, or 

receipt of a personal benefit. More importantly, any such allegations would be 

irrelevant to Governor Perry’s facial challenge because the plain language of 

Section 36.03(a)(1) and Section 1.07(a)(9)(F) extends far beyond extortionate 

threats or bribery. 

b. The court of appeals was correct that Governor Perry 

did not lose his First Amendment rights by holding 

public office. 

 The State also advances the novel claim that Governor Perry cannot make a 

facial overbreadth challenge to Section 36.03(a)(1) and Section 1.07(a)(9)(F) 

because, in exercising his official duties as Governor of Texas, he enjoyed no First 

Amendment rights. See St.Br. at 8-10. The State cites two recognized instances of 

prohibition: (1) certain government-employee speech, which is subject to no 

greater First Amendment protection than the speech of private employees; and 

 

11 In Sanchez, this Court commented that if the official oppression statute were to cover 

“conduct welcomed by the recipient in a corrupt bargain,” then such conduct could also be 

prosecuted under the prostitution or bribery statutes. 995 S.W.2d at 684 & n.5. Similarly, if 

there were any facts supporting the State’s use of its colorful metaphors such “retaliatory act,” 

“verbal extortion,” or “quid pro quo threat” then the State could have sought an indictment under 

other, arguably applicable statutes. 
26 

(2) the concept of government speech itself. Id. The court of appeals properly 

rejected both of these. Slip Op. at 63-71. 

 But neither of these principles has anything to do with criminalizing speech, 

much less criminalizing an elected official’s political speech through the 

mechanism of an overboard statute. First, from a strictly legal standpoint, facial 

overbreadth analysis deals not with the statute as applied to the particular 

defendant, but whether “it prohibits a substantial amount of protected speech.” 

Williams, 553 U.S. at 292. Governor Perry’s own First Amendment rights are 

therefore irrelevant to the resolution of his facial overbreadth challenge. 

 With regard to government-employee speech, the State points out that the 

First Amendment generally does not protect statements made by public servants in 

the course of their employment. St.Br. at 9 (citing Garcetti v. Ceballos, 547 U.S. 

410, 422 (2006)). But this employee-speech “exception” is not really an exception 

at all—it just makes unelected public servants, who are employees, subject to civil 

employment-law standards comparable to employees in the private sector. Just 

like a private employer, governmental entities “need a sufficient degree of control 

over their employees’ words and actions” to ensure the “provision of public 

services.” Garcetti, 547 U.S. at 418; see also Connick v. Myers, 461 U.S. 138, 143 

(1983) (“[G]overnment offices could not function if every employment decision 

became a constitutional matter.”). 
27 

 The rights of those directly selected by the people to govern, such as the 

Governor of Texas, are not so limited. Indeed, political speech by elected officials, 

whose “relationship with [their] employer [i.e., the people] differs from that of an 

ordinary state employee,” “is at the core of the First Amendment.” Jenevein v. 

Willing, 493 F.3d 551, 557 (5th Cir. 2007) (Texas Judicial Conduct Commission 

violated First Amendment rights by censuring elected judge for public criticism of 

attorney practicing in his court). “The role that elected officials play in our society 

makes it all the more imperative that they be allowed freely to express themselves 

on matters of current public importance.” Wood v. Georgia, 370 U.S. 375, 395 

(1962) (reversing contempt conviction of elected sheriff based on criticism of 

court’s grand jury investigation). The Supreme Court has expressly rejected the 

idea that the First Amendment protects only the “citizen-critic” and not elected 

officials as well. Bond v. Floyd, 385 U.S. 116, 136 (1966) (state legislature 

violated elected representative’s First Amendment rights by refusing to seat him 

based on his controversial remarks about the Vietnam War). 

 The State also errs by characterizing Governor Perry’s alleged threat as 

“government speech” exempt from the First Amendment—as if anything uttered 

by a government employee, or the Governor himself, can be criminalized without 

any First Amendment analysis at all. St.Br. at 8-9. The State’s authorities for this 

bizarre and frankly dangerous notion have nothing whatsoever to do with 
28 

criminalizing speech. They merely acknowledge that the First Amendment 

generally allows the government to communicate its own particular viewpoints 

without subsidizing or promoting other viewpoints to the same extent as its own. 

See Pleasant Grove City v. Summum, 555 U.S. 460, 467 (2009) (city could select 

which monuments to place in public park); Johanns v. Livestock Mktg. Ass’n, 544 

U.S. 550, 561 (2005) (federal government could choose to spend money promoting 

beef consumption). The Supreme Court recently reaffirmed this doctrine in 

Walker v. Tex. Division, Sons of Confederate Veterans, Inc., 135 S. Ct. 2239 

(2015) (Texas could constitutionally exclude from its specialty license plates 

SVC’s proposed design featuring the Confederate battle flag).12 But none of these 

cases authorize the government to criminalize speech by government employees or 

anyone else, must less elected leaders. 

 Even if First Amendment protections were somehow withdrawn from 

“government speech” as a general proposition, Governor Perry’s alleged threat is 

not the sort of officially-sanctioned “government speech” involved in the cited 

cases. His statements—which the State in its “bill of particulars” now concedes 

were never made directly to Lehmberg, see March 2, 2015 SuppCR at 6, and were 

 

12 Walker holds that “specialty license plates issued pursuant to Texas’ statutory scheme 

convey government speech.” Walker v. Tex. Div., Sons of Confederate Veterans, Inc., 135 S. Ct. 

2239, 2246 (2015). The Court stated that because “the government can speak for itself,” and 

“[w]hen the government speaks, it is not barred by the Free Speech clause from determining the 

content of what it says,” Texas could constitutionally exclude from its license plate SVC’s 

proposed design and logo. Id. at 2245-46. 
29 

merely “implied or disguised,” see St.Br. at xvi—were not presented as the official 

viewpoint of the State of Texas, but rather his own viewpoint as the Governor of 

Texas. Cf. Pleasant Grove, 555 U.S. at 473-74 (city spoke through a Ten 

Commandments monument when it “took ownership of that monument and put it 

on permanent display in a park that it owns and manages and that is linked to the 

City’s identity”); Johanns, 544 U.S. at 561 (beef promotion campaign was 

government speech because the activities were “prescribed by law in their general 

outline” and “developed under official government supervision”). The State wants 

to have it both ways: characterizing Governor Perry’s alleged speech as the official 

position of the State while at the same time prosecuting him as an individual for 

expressing it. 

 From its faulty premise that speech by government officials enjoys no First 

Amendment rights, the State also concludes that the Legislature can always limit 

the speech of its own members without running afoul of the First Amendment, 

even if that requires restricting some “incidental” private speech in the process. 

St.Br. at 10-11. The State argues that the specific statutory language at issue 

merely restricts private speech in order to express the “viewpoint” that “official 

speech should not be coerced speech.” Id. 

 The State’s apparent argument is that Section 36.03(a)(1) and Section 

1.07(a)(9)(F) express a government “viewpoint” and can therefore freely 
30 

criminalize any private speech made with the intent to influence the speech (or 

conduct) of a public official, regardless of the words used, without further First 

Amendment concerns. Section 36.03(a)(1), it must be recalled, is applicable to any 

citizen, whether that citizen is a public official, a public official acting in his 

individual capacity, or a private citizen.13 Thus, under the State’s argument, a 

newspaper editorial expressing the personal view of the editor, which was intended 

to pressure and have a “coercive impact” on a public servant, could be 

criminalized, even though the First Amendment clearly protects such speech. Org. 

for a Better Austin, 402 U.S. at 419 (emphasis added). 

 The State’s argument also mistakenly assumes that the coercion statute “is 

the Texas Legislature regulating its own speech and actions.” St.Br. at 11. But the 

State fails to account for the statutory exception of Section 36.03(c), which—far 

from regulating the Legislature’s “own speech”—excludes from the purview of 

Section 36.03(a)(1) “official actions” taken by “a member of the governing body of 

a governmental entity” that are intended to influence another public servant. This 

exception reflects a legislative determination that “coercion” by one public servant 

against another public servant is not always or even necessarily a crime under 

 

13 Count II specifically alleges that Governor Perry was “acting in an official capacity as a 

public servant.” But the statutory language allows prosecution of a private citizen as well as a 

public servant, regardless of whether the public servant is speaking in his public or individual 

capacity. See e.g., Tobias v. State, 884 S.W.2d 571, 577 (Tex. App.—Fort Worth 1994, pet. 

ref’d); Phillips v. State, 401 S.W.3d 282, 287-89 (Tex. App.—San Antonio 2013, pet. ref’d). 
31 

Section 36.03(a)(1). Indeed, when the defendant is himself or herself a certain 

type of public servant (i.e., “a member of the governing body of a governmental 

entity”) and the defendant takes “official action” that “influences or attempts to 

influence a public servant” (i.e., the alleged victim of the “coercion”), there is no 

crime under Section 36.03(a)(1). The statutory exception negates the State’s 

argument here that the Legislature was attempting to limit its own speech. But 

even if the State’s explanation were not so obviously wrong on so many levels, the 

State never explains how the Legislature, under the guise of “regulating its own 

speech,” could abrogate individual members’ constitutional rights, much less those 

of private citizens throughout Texas. Both have the right to say anything to a 

public servant as long as it is does not constitute a “true threat.” 

 Simply stated, none of the State’s arguments attempting to deflect the impact 

of the First Amendment on Section 36.03(a)(1), as it incorporates the definition of 

“coercion” from Section 1.07(a)(9)(F), has any merit. 

6. Section 36.03(a)(1), as it incorporates the definition of 

“coercion” from Section 1.07(a)(9)(F), is a content-based 

restriction on speech. 

 The coercion statute does not target all threats against a public servant, but 

only those with a certain content—i.e., “threat[s] . . . to take or withhold official 

action” that “attempt to influence or influence” public servants. Tex. Penal Code 

§§ 1.07(a)(9)(F), 36.03(a)(1). As such, it distinguishes “favored speech from 
32 

disfavored speech on the basis of the ideas or views expressed” and is clearly 

content-based. Ex parte Thompson, 442 S.W.3d at 345; Ex parte Lo, 424 S.W.3d 

at 15-14 In the court of appeals, the State itself conceded that Section 36.03(a)(1) 

and Section 1.07(a)(9)(F) are content-based restrictions on speech. St. Br. 14-15. 

Thus, “strict scrutiny” is the proper standard of review, “because, ‘as a general 

matter, the First Amendment means that government has no power to restrict 

expression because of its message, its ideas, its subject matter, or its content.’” Ex 

parte Lo, 424 S.W.2d at 16 (quoting Ashcroft v. A.C.L.U., 535 U.S. 564, 573 

(2002)). Under that standard, the statute is presumed invalid. Ex parte Thompson, 

442 S.W.3d at 344-345; Ex parte Lo, 424 S.W.3d at 15. 

 In the court of appeals, the State disputed that strict scrutiny applied for the 

same reasons it proffered that Governor Perry lacked any free speech rights. It 

claimed that the presumption of constitutionality applies to the statutes because 

“regulating coercive threats by public officials is distinct from regulating purely 

political speech by private citizens.” St.Br. at 14-15. And it suggested that strict 

scrutiny is inapplicable because “only content-based regulations on private 

citizen’s speech would be held presumptively invalid and subject to strict 

 

14 In Reed v. Town of Gilbert, Ariz., 135 S. Ct. 2218, 2230 (2015), the Supreme Court 

specifically observed that “a law banning the use of sound trucks for political speech—and only 

political speech—would be a content-based regulation even if it imposed no limits on the 

political viewpoints that could be expressed.” Reed further compels the conclusion that the 

limitation the statutory scheme, proscribing communications by one public official to another 

that threaten to take or withhold official action, is a content-based restriction. 
33 

scrutiny.” St.Br. at 19-20 (emphasis in original). But these attempts to divorce the 

protections of the First Amendment from the government are, as has been 

discussed above, incorrect. 

7. Section 36.03(a)(1), as it incorporates the definition of 

“coercion” from Section 1.07(a)(9)(F), fails to satisfy “strict 

scrutiny.” 

 Under strict scrutiny, a law regulating speech or expression may be upheld 

only if it is narrowly drawn to serve a compelling government interest. Ex parte 

Thompson, 442 S.W.3d at 344; Ex parte Lo, 424 S.W.3d at 15-16, 19. A statute is 

“narrowly drawn” if it uses the least restrictive means of achieving the government 

interest.” Ex parte Thompson, 442 S.W.3d at 344; Playboy Entm’t Grp., Inc., 529 

U.S. at 813; Ex parte Lo, 424 S.W.3d at 15-16, 19. Such “content-based 

regulations are presumptively invalid, and ‘[i]t is rare that a regulation restricting 

speech because of its content will ever be permissible.’” Ex parte Thompson, 442 

S.W.3d at 348 (citing Sorrell v. IMS Health 131 S. Ct. 2653, 2667 (2011) (quoting 

R.A.V. v. City of St. Paul, 505 U.S. at 382) and Entm’t Merchants Ass’n, 131 S. Ct. 

2729 at 2738 (citing Playboy Entm’t Grp., 529 U.S. at 818)). 

 The State cannot salvage Sections 36.03(a)(1) and 1.07(a)(9)(F) by arguing 

that they are the least restrictive means of achieving a compelling state interest. 

Any compelling state interests are already addressed by the other types of threats 

that constitute “coercion” under Section 1.07(a)(9). The State surely has a 
34 

compelling interest in preventing threats of unlawful or criminal acts against public 

servants, but Section 1.07(a)(9)(A) already covers threats “to commit an offense.” 

And while the State has a compelling interest in preventing threats of violence 

against public servants, Tobias v. State, 884 S.W.2d 571, 580-81 (Tex. App.—Fort 

Worth 1994, pet. ref’d), this interest is already addressed by Section 

1.07(a)(9)(B)’s coverage of threats “to inflict bodily injury in the future on the 

person threatened or another.” And to the extent extortionate threats against public 

servants are not already covered by these prior two provisions, Sections 

1.07(a)(9)(C) through (E) address threats of defamation and invasion of privacy. 

In short, there is no compelling state interest left to serve by Section 

1.07(a)(9)(F)’s catch-all coverage of threats “to take or withhold action as a public 

servant.” The only discrete function of this provision, when combined with 

Section 36.03(a)(1), is to prohibit constitutionally-protected speech. 

 An analogous situation was presented in Ex parte Lo, 424 S.W.3d 10 (Tex. 

Crim. App. 2013), in which this Court struck down a subsection of the Penal Code 

which prohibited sex-related online communications with minors. That statute 

(like the one here) was a “content-based regulation” and “presumptively invalid.” 

Id. at 15. According to the Court, the statute was not narrowly tailored because 

“everything that [it] prohibits and punishes is speech and is either already 

prohibited by other statutes (such as obscenity, distributing harmful material to 
35 

minors, solicitation of a minor, or child pornography) or is constitutionally 

protected,” such as sexually explicit works of literature and popular television 

shows and movies. Id. at 20 (emphasis in original). The same logic applies to 

Sections 36.03(a)(1) and 1.07(a)(9)(F). See also Thompson, 442 S.W.3d at 349-50 

(striking down as overbroad a criminal photography statute because, while the 

statute had some “legitimate applications,” it “appl[ied] to any non-consensual 

photograph, occurring anywhere, as long as the actor ha[d] an intent to arouse or 

gratify sexual desire,” including photographs of celebrities and public sunbathers). 

C. Even if the court of appeals erred in its reasoning, its judgment 

was correct for other reasons. 

1. Section 36.03(a)(1), as it incorporates the definition of 

“coercion” from Section 1.07(a)(9)(F), is overbroad. 

 The court of appeals’ judgment was also correct because the statutes forming 

the basis for Count II, when read together, are overbroad. See Ex parte Thompson, 

442 S.W.3d at 349-351. 

 The court of appeals discussed the overbreadth of the statutory scheme 

throughout its opinion, but did not formally declare the provisions violative of the 

First Amendment overbreadth doctrine. It held only that “section 36.03(a)(1), as it 

incorporates paragraph (F) of the Penal Code’s ‘coercion’ definition, is facially 

invalid under the First Amendment and is thus unenforceable.” Slip Op. at 97. 

 As noted above, a state can outlaw threats of violence against a public 
36 

servant without raising any First Amendment concerns. “True threats”—which the 

U.S. Supreme Court has defined as “statements where the speaker means to 

communicate a serious expression of an intent to commit an act of unlawful 

violence”—have no First Amendment protection. Black, 538 U.S. at 359 (no 

protection for cross burning that communicates threat of bodily harm or death); see 

also Watts, 394 U.S. at 707-08 (no protection for threat to assassinate the President 

of the United States). Threats to commit an unlawful act are also generally not 

protected. See Wurtz v. Risley, 719 F.2d 1438, 1442 (9th Cir. 1983) (no protection 

for threat to commit rape); U.S. ex rel. Holder v. Circuit Court of 17th Judicial 

Circuit, 624 F. Supp. 68, 71 (N.D. Ill. 1985) (no protection for threat to damage 

property). And courts have also held that the First Amendment does not protect 

extortion (i.e., threats of harm or defamation made to obtain a wrongful profit). 

See United States v. Coss, 677 F.3d 278, 289-90 (6th Cir. 2012) (no protection for 

threat to damage reputation made with intent to wrongfully obtain property); cf. 

Sanchez v. State, 995 S.W.2d 677, 687-88 (Tex. Crim. App. 1999) (no protection 

for sexual harassment made with intent to wrongfully obtain sexual favors); see 

also State v. Strong, 272 P.3d 281, 287 (Wash. App. 2012) (noting that extortion 

involves “compelling of the victim to give up property” and is thus “an extension 

of theft”). 

 “Speech does not lose its protected character, however, simply because it 
37 

may embarrass others or coerce them into action.” Claiborne Hardware Co., 458 

U.S. at 886 at 910. Most threats do not fall into the categories of unprotected 

speech listed above and instead enjoy “broad protection” under the First 

Amendment. All. to End Repression v. City of Chicago, 742 F.2d 1007, 1014 (7th 

Cir. 1984). Non-extortionate threats to commit lawful action are protected by the 

First Amendment, even if they influence another public servant. See State v. 

Hanson, 793 S.W.2d 270, 272 (Tex. App.—Waco 1990, no pet.) (“Coercion of a 

lawful act by a threat of lawful action is protected free expression.”). And courts 

have recognized that “a threat to cause economic loss is not inherently wrongful.” 

United States v. Jackson, 180 F.3d 55, 70 (2d Cir. 1999) (listing, as examples, a 

consumer’s threat to sue for breach of warranty or file a complaint with a 

consumer protection agency). Indeed, threats are “common in everyday business 

and personal interactions.” State v. Weinstein, 898 P.2d 513, 515 (Ariz. Ct. App. 

1995) (listing, as examples, car owner’s threat to tell friends not to patronize a 

dealer unless repairs are made, a store owner’s threat to report a customer to a 

credit reporting agency unless bills are paid, and a mother’s threat to report her exhusband to the court if he fails to pay back child support). Threats are also 

common in American political discourse, often being inseparable from ideas or 

advocacy. See United States v. Velasquez, 772 F.2d 1348, 1357 (7th Cir. 1985) 

(giving, as an example, a threat to picket an organization to induce social or 
38 

political action). Even threats to commit minor criminal offenses (such as threats 

of civil disobedience) can be protected speech. See Wurtz, 719 F.2d at 1442 

(listing, as examples, threats of sit-ins, marches in the street, and mass picketing); 

Holder, 624 F. Supp. at 70 (listing additional examples). 

 Given the broad protection accorded to threats under the First Amendment, 

courts have not hesitated to strike down broadly-written coercion and extortion 

laws on grounds of overbreadth. See, e.g., Wurtz, 719 F.2d at 1441-42 (striking 

down Montana intimidation statute prohibiting threats “to commit any criminal 

offense,” no matter how minor or the purpose of the threat); Holder, 624 F. Supp. 

at 71 (striking down Illinois intimidation statute prohibiting threats to “commit any 

criminal offense”); Weinstein, 898 P.2d at 515 (striking down extortion statute that 

prohibited obtaining property by threats to expose disreputable information, which 

impinged on legitimate negotiation tactics); Whimbush v. People, 869 P.2d 1245, 

1247-48 (Colo. 1994) (striking down extortion statute prohibiting making any 

threat to harm with intent to induce action, which improperly “covers threats of 

collective action in support of group demands”); State v. Robertson, 649 P.2d 569, 

589-90 (Or. 1982) (striking down coercion statute prohibiting a wide range of 

threats merely intended to induce some action by another); City of Seattle v. Ivan, 

856 P.2d 1116, 1120 (Wash. App. 1993) (striking down city’s coercion ordinance 

which prohibited a wide range of threats merely intended to induce some action by 
39 

another). Other courts have given coercion and extortion statutes narrow 

constructions to avoid constitutional issues. See, e.g., Jackson, 180 F.3d at 70 

(construing extortion statute to only include “wrongful” threats to obtain property 

from another, and recognizing that some threats to obtain property are legitimate 

negotiation tactics); People v. Iboa, 207 Cal. App. 4th 111, 120-21 (2012) (statute 

proscribing use of “threats” to interfere with duties of executive officer construed 

as limited to “threats of unlawful violence”); State v. Pauling, 69 P.3d 331, 387-89 

(Wash. 2003) (narrowing otherwise overbroad extortion statute to only include 

“wrongful” threats made with intent to obtain property from another). 

 As written, Sections 36.03(a)(1) and 1.07(a)(9)(F) criminalize a breathtaking 

amount of constitutionally protected speech. As explained above, they purport to 

criminalize (with only one exception) any threat by a public servant to take any

official action as a means of merely influencing the conduct of any other public 

servant.15 Importantly, the statute is not limited to threats of “unlawful” conduct, 

see Tex. Penal Code § 1.07(a)(48) (defining “unlawful” as “criminal or tortious or 

both”), in contrast to other similar statutes. See, e.g., id. § 36.06(a) (illegal to 

“intentionally or knowingly . . . threaten[] to harm another by an unlawful act” in 

retaliation for public service (emphasis added)). 

 

15 The statute also applies to all citizens, even public servants acting in their individual 

capacities, who attempt “to cause a public servant to take or withhold action” under the last 

clause of Section 1.07(a)(9)(F). 
40 

 The implications are astounding, as they would render criminal many 

common scenarios in state government. For instance, a manager could not threaten 

to fire or demote a government employee unless the employee increased his 

productivity. A government employee could not threaten to resign unless her pay 

or benefits were increased, or to file a complaint unless workplace harassment 

were stopped. A judge could not threaten to sanction an attorney for the State, to 

declare a mistrial if jurors did not avoid misconduct, or to deny warrants that failed 

to contain certain information. An inspector general could not threaten to 

investigate an agency’s financial dealings. A prosecutor could not threaten to 

bring criminal charges against another public servant. A university administrator 

could not threaten to withdraw funding from a professor’s research program. A 

public defender could not threaten to file a motion for suppression of evidence to 

secure a better plea bargain for his client. A prosecutor could not communicate to 

a judge in chambers his intent to file a potentially embarrassing motion to recuse 

unless the judge voluntarily recused herself. Were it not for the fact that members 

of a “governing body” are excepted from the statute, even members of the House 

and Senate would presumably be breaking the law when they negotiated among 

themselves to resolve differences in conference committee.16 The list is virtually 

 

16 Indeed, even a threat directed against a third party can trigger criminal liability if 

intended to influence a public servant. See Phillips v. State, 401 S.W.3d 282, 289 (Tex. App.—

San Antonio 2013, pet. ref’d) (upholding conviction of 911 caller who threatened to kill 
41 

endless.17 Statements so intrinsic to government, particularly when they relate to 

matters of public policy, lie at the core of First Amendment protection. See Meyer, 

486 U.S. at 422 (First Amendment protection is “at its zenith” for core political 

speech); Garrison v. La., 379 U.S. 64, 74-75 (1964) (“[S]peech concerning public 

affairs is more than self-expression; it is the essence of self-government.”). 

 Inescapably, the plain language of Sections 36.03(a)(1) and 1.07(a)(9)(F) 

prohibit a striking number of ordinary activities that involve constitutionally 

protected speech, much of it political in nature. In fact, as written, the statutory 

language would make the ordinary functioning of government impossible. This is 

a textbook case of overbreadth. 

 To support its ruling, the district court below cited several cases where 

Texas courts rejected facial First Amendment challenges to statutory language that 

was narrowly drawn and not constitutionally overbroad. CR475-478. But these 

cases deal with different statutory sections and distinguishable facts. The Second 

Court of Appeals rejected a First Amendment challenge to Sections 36.03(a)(1) 

and 1.07(a)(9)(A), under which a private citizen was charged with threatening to 

 

particular police officer and thus influenced which officer a 911 dispatcher sent to the scene). 

For example, a government employee who threatened a trespasser and thereby caused a nearby 

peace officer to intervene would be a criminal under these provisions. 

17 This list of potential implications was so compelling that the court of appeals 

incorporated many of them into its opinion. Slip Op. at 58-60. And while the State’s petition 

attempts to distinguish two of them, its petition nevertheless admits that “[s]ome of the court of 

appeals’ hypotheticals may be valid.” State PDR at 12. 
42 

“commit an offense” (murder and assault) against three court-of-appeals justices. 

Tobias, 884 S.W.2d at 580-82. The Fourteenth Court of Appeals upheld a 

retaliation statute which prohibited “threat[s] to harm another by an unlawful act.” 

Puckett v. State, 801 S.W.2d at 192 (quoting former Tex. Penal Code § 36.06(a)). 

This Court upheld a harassment statute that prohibited “threat[s], by telephone or 

in writing, to take unlawful action.” Collection Consultants, Inc. v. State, 556 

S.W.2d 787, 792 (Tex. Crim. App. 1977) (emphasis added) (quoting former Tex. 

Penal Code § 42.07(a)(2)). The Fourth Court of Appeals upheld a theft statute that 

prohibited extortion i.e., “unlawfully appropriat[ing]” property by means of 

“coercion” as defined in Section 1.07(a)(9)(D) and (E) (i.e., threats of defamation). 

Roberts v. State, 278 S.W.3d 778, 790-93 (Tex. App.—San Antonio 2008, pet. 

ref’d). Finally, this Court upheld a sexual harassment statute that prohibited public 

servants from conditioning a right or privilege on submission to sexual advances—

conduct that the court analogized to extortion. Sanchez, 995 S.W.2d at 687-88. 

 In every one of these cases, the statutes at issue were narrowly written to 

focus on unprotected speech. None of these cases stands for the broad proposition 

that all threats—even those which are not “true threats”—are unprotected speech, 

much less that the State has a compelling interest in preventing their 

communication. And none of these cases dealt with, much less upheld, the much 

broader statutory language at issue here, which is not limited to threats to 
43 

“unlawfully” take or withhold official action. See Tex. Penal Code § 1.07(a)(48) 

(defining “unlawful” to mean “criminal or tortious or both and includes what 

would be criminal or tortious but for a defense not amounting to justification or 

privilege”).18

 Citing Broadrick v. Oklahoma, 413 U.S. 601 (1973), the State claims the 

statutory scheme’s overbreadth has not been demonstrated to be “realistic or 

substantial,” because there is “no evidence that in the years since the coercion 

statute was enacted, any public servant has been chilled.” State PDR at 12. 

Overbreadth is an “expansive remedy” that has been provided by the Supreme 

Court “out of concern that the threat of enforcement of an overbroad law can deter 

or ‘chill’ constitutionally protected speech—especially when the overbroad statute 

imposes criminal sanctions.” Virginia v. Hicks, 539 U.S. 113, 119 (2003) (citing 

Schaumburg v. Citizens for a Better Env’t, 444 U.S. 620, 634 (1980). 

 But the overbreadth doctrine’s concern with “chilling” protected speech 

“attenuates as the otherwise unprotected behavior that forbids the State to sanction 

moves from ‘pure speech’ toward conduct.” Id. at 124 (citing Broadrick, 413 U.S. 

at 615). “To put the matter another way, particularly where conduct and not 

merely speech is involved, we believe that the overbreadth of a statute must not 

 

18 As the district court recognized, Governor Perry intends to assert a “public duty” 

justification defense under Texas Penal Code Section 9.21 if this case ever proceeds to trial. 

CR472 n.7. 
44 

only be real, but substantial as well, judged in relation to the statute’s plainly 

legitimate sweep.” Broadrick, 413 U.S. at 615. This analysis considers “a 

statute’s application to real-world conduct, not fanciful hypotheticals, and there 

must be a “realistic danger that the statute itself will significantly compromise 

recognized First Amendment protections of parties not before the Court. Stevens, 

559 U.S. at 485. 

 Here, because Section 36.02(a)(1), in conjunction with Section 

1.07(a)(9)(F), criminalizes only speech that does not constitute a “true threat,” this 

particular statutory scheme has no plainly legitimate sweep. The determination by 

the court of appeals that the “extent and nature” of the statutory scheme’s 

alarmingly broad proscription on “First Amendment-protected territory” “cannot 

merely be left to remedy through future case-by-case adjudication,” Slip Op. at 39, 

is a recognition that the statutory scheme criminalizes a substantial amount of 

protected speech in absolute terms. A fortiori, the statutory overbreadth is 

“realistic or substantial,” as it includes “core political speech” for which the First 

Amendment’s protections are at their “zenith.” Id. at 62. 

 Indeed, this is entirely consistent with United States v. Stevens, where the 

Supreme Court invalidated the animal cruelty statute because it was “substantially 

overbroad.” 559 U.S. 482. But it did so only after concluding that the statute was 

“presumptively invalid” because it “explicitly regulates expression based on 
45 

content.” Id. at 468. The Court’s overbreadth analysis examined the 

presumptively impermissible applications of the statute and compared them to the 

permissible ones, without examining whether there was any “evidence” of a 

“chilling” effect on First Amendment rights. 

 Finally, the court of appeals recognized the relative absence of criminal 

prosecutions under Section 36.02(a)(1) and Section 1.07(a)(9)(F)—at least until 

this misguided prosecution—is most probably because of Hanson’s declaration, 

twenty-five years ago, that this exact statutory scheme is unconstitutional. Slip Op. 

at 90. The State’s argument would seem to stand First Amendment jurisprudence 

on its head, upholding the statute on the basis of a lack of “evidence” of an actual 

chilling effect when in fact, the statute is aimed only at criminalizing speech 

otherwise protected by the First Amendment. 

 The only case to address the constitutionality of the statutory language at 

issue here affirmed the dismissal of an indictment which was based on a threat of 

lawful conduct. See Hanson, 793 S.W.2d at 273. Hanson held that a prior version 

of Section 36.03(a)(1) was unconstitutionally vague as applied to a threat of lawful 

action because “[c]oercion of a lawful act by a threat of lawful action is protected 

free expression,” and a reasonable person could only guess whether “the term 

‘threat’ encompass[ed] a threat of lawful action or only prohibit[ed] a threat of 

unlawful action.” Id. at 272 (emphasis added). While Hanson expressly declined 
46 

to reach the question of the statute’s overbreadth, id. at 273, its First Amendment 

holding supports that challenge as well. 

 Text, precedent, and common sense all point to the same conclusion: 

Sections 36.03(a)(1) and 1.07(a)(9)(F), in conjunction, would essentially 

criminalize the ordinary give and take of politics as well as the administration of 

state government, all in violation of the First Amendment and without serving any 

compelling state interest. For these reasons, the statutory language is facially 

unconstitutional and void, as well as overbroad. The court of appeals reached the 

proper result. 

2. The statutory scheme is facially void for vagueness 

 The coercion statute is fatally unclear about the conduct it purports to 

prohibit. CR18, 35-41, 413-16. The district court reasoned, erroneously, that 

because some conduct (such as threats of violence) are clearly covered by the 

language of the statute, the language must survive a facial vagueness challenge. 

CR479-82. But laws regulating speech are measured by stricter standards of 

certainty. As with his First Amendment challenges, Governor Perry is challenging 

the facial vagueness of Sections 36.03(a)(1) and 1.07(a)(9)(F) when read together, 

not either standing alone. 

 Due process requires that criminal laws be sufficiently clear in two distinct 

respects. First, a person of ordinary intelligence must be given a reasonable 
47 

opportunity to know what is prohibited. Long v. State, 931 S.W.2d 285, 287 (Tex. 

Crim. App. 1991) (citing Grayned v. Rockford, 408 U.S. 104, 108 (1972)). 

Second, the law must establish determinate, explicit guidelines to prevent arbitrary 

enforcement by the government. Long, 931 S.W.2d at 287 (citing Grayned, 408 

U.S. at 108-09). Thus, a statute is void for vagueness if it “either forbids or 

requires the doing of an act in terms so vague that men of common intelligence 

must guess as to its meaning and differ as to its application.” Ely v. State, 582 

S.W.2d 416, 419 (Tex. Crim. App. 1979); Papachristou v. City of Jacksonville, 

405 U.S. 156, 162 (1971). 

 In addition, when First Amendment freedoms are implicated, as here, the 

law must be sufficiently definite to avoid chilling protected expression. Long, 931 

S.W.2d at 287-88 (citing Grayned, 408 U.S. at 109). “When a statute is capable of 

reaching First Amendment freedoms, the doctrine of vagueness demands a greater 

degree of specificity than in other contexts.” Long, 931 S.W.2d at 287-88 (quoting 

Kramer v. Price, 712 F.2d 174, 177 (5th Cir. 1983) (quotation marks omitted)). 

That heightened specificity is necessary to preserve the right of free expression 

because “[u]ncertain meanings inevitably lead citizens to steer far wider of the 

unlawful zone than if the boundaries of the forbidden areas were clearly marked.” 

Grayned, 408 U.S. at 109 (internal ellipsis and quotation marks omitted). When a 

vagueness challenge involves First Amendment considerations, the usual strictures 
48 

of facial challenges are relaxed; a criminal statute may be held facially invalid for 

vagueness even though it may not be unconstitutional in every application or even 

as applied to the defendant’s conduct. Long, 931 S.W.2d at 288 (citing Gooding v. 

Wilson, 405 U.S. 518 (1972)). 

 Sections 36.03(a)(1) and 1.07(a)(9)(F) raise a fundamental and vexing 

question for any public servant19 who wishes to comply with the law: does the 

statutory language actually prohibit any threat to “take or withhold action as a 

public servant” that merely “influences” another public servant? As Hanson

recognized, substantial uncertainty exists about whether this language was truly 

intended to embrace threats of lawful action, which are protected by the First 

Amendment. See Hanson, 793 S.W.2d at 272-73 (holding this statutory language 

was unconstitutionally vague as applied to threats of lawful action).20 Moreover, a 

similar uncertainty exists about whether the statute was intended to cover threats of 

unlawful action, as such threats are already addressed by subparts (A) through (E) 

of the “coercion” definition in Section 1.07(a)(9). 

 Further compounding the vagueness of these sections is the fact that the 

offense requires no culpable mental state. Technically, an offense could be 

 

19 Since the statute also applies to non-public servants, the lack of notice applies to all 

citizens regardless of whether they are public servants (and regardless of the capacity in which 

they speak). 

20 This uncertainty is heightened now because public servants might reasonably rely on 

Hanson’s holding that the First Amendment protects threats of lawful action. 
49 

committed under these provisions whenever a public servant makes a threat “to 

take or withhold [official] action,” Tex. Penal Code § 1.07(a)(9)(F), as long as the 

threat merely has the effect of “influenc[ing]” another public servant. Id. § 

36.03(a)(1). Indeed, the statutory language does not require that an offender even 

know about the threat’s influence on the other public servant. Even a threat of 

official action inadvertently heard and acted upon by another public servant could 

be a criminal offense. The absence of a culpable mental state means that citizens 

cannot determine whether their conduct is prohibited—a plain violation of due 

process. See Colautti v. Franklin, 439 U.S. 379, 395 (1979) (statute that 

criminalized killing a viable fetus held unconstitutionally vague where no scienter 

was required with respect to fetus’s viability, thus creating “a trap for those who 

act in good faith”); Long, 931 S.W.2d 285 at 290 (striking down harassment statute 

as unconstitutionally vague in part because statutory requirement of a police report 

“does little or nothing to inform an ordinary person that his conduct is forbidden 

because the subsection contains no culpable mental state”; “[t]he wording of the 

statute does not require the defendant to know that the victim has made such a 

report” (emphasis in original)). 

 The vagueness of the statutory language is underscored by the fact that it 

confusingly appears to characterize as “coercion” a threat that does not even rise to 

the level of duress. For example, a public official who resigns under duress is 
50 

allowed to rescind the resignation and recover the office. Crouch v. Civil Serv. 

Comm’n of Tex. City, 459 S.W.2d 491, 494 (Tex. Civ. App.—Houston [14th Dist.] 

1970, writ ref’d n.r.e.). Yet had Lehmberg resigned because of Governor Perry’s 

alleged veto threat, she could not have shown duress. “[A] threat to do what one 

has a legal right to do, as bringing suit in court to enforce a claimed civil right, 

cannot constitute duress.” Willborn v. Deans, 240 S.W.2d 791, 793-95 (Tex. Civ. 

App.—Austin 1951, writ ref’d n.r.e.) (emphasis added) (holding that sheriff could 

not recover his office on grounds of duress after being pressured out of office by 

district attorney’s threat to bring removal proceedings). Similarly, a threat that 

“delineat[es] the options available” and forces a public official to make “a 

reasoned choice between two validly imposed alternatives” is not duress as a 

matter of law. Van Arsdel v. Tex. A&M Univ., 628 F.2d 344, 346 (5th Cir. 1980) 

(holding that university employee could not recover his position on grounds of 

duress after resigning due to university’s threat to bring dismissal proceedings 

against him based on accusations of sexual harassment). 

 The district court rejected Governor Perry’s facial vagueness challenge to 

Sections 36.03(a)(1) and 1.07(a)(9)(F) without adequately addressing the substance 

of that challenge. The trial court first noted that the word “threat” has established 

dictionary definitions. CR480 (quoting Olivas v. State, 203 S.W.3d 341, 345-46 

(Tex. Crim. App. 2006)). Most words do. But these definitions fail to resolve the 
51 

fundamental source of vagueness in the statutory language—i.e., whether the 

“threat” described in Section 1.07(a)(9)(F) refers to threats of lawful action, 

unlawful action, or both. The trial court also cited two cases which held that 

threat-related language was not unconstitutionally vague. CR481. But neither of 

those cases addressed the language at issue here. Tobias upheld Section 

36.03(a)(1) to the extent it involved coercion under Section 1.07(a)(9)(A) (i.e., 

threats to commit an offense). See 884 S.W.2d at 580-82. Roberts upheld a statute 

prohibiting theft by means of coercion under Section 1.07(a)(9)(D) and (E) (i.e., 

threats of defamation). Roberts, 278 S.W.3d at 790-93. In short, no case has 

upheld the statutory language at issue here—Section 36.03(a)(1) to the extent it 

involves coercion under Section 1.07(a)(9)(F) (i.e., threats to take or withhold 

official action). And this language is materially broader—and vaguer—than any of 

the language in the other subsections of Section 1.07(a)(9). It does not contain any 

limitation to threats of “unlawful” conduct. See Tex. Penal Code § 1.07(a)(48) 

(defining “unlawful” to mean “criminal or tortious or both”). 

 As discussed above, the only case to address this language held that it was 

unconstitutionally vague as applied to threats of lawful conduct. See Hanson, 793 

S.W.2d at 273. Hanson expressly declined to reach the question of facial 

vagueness. Id. However, because the vagueness identified by Hanson is a 

pervasive feature of the statutory language and trenches on First Amendment 
52 

freedoms to an intolerable degree, Sections 36.03(a)(1) and 1.07(a)(9)(F) are also 

facially vague. 

 The Legislature has enacted other statutes addressing threats against public 

servants that do not suffer from these vagueness defects, if only because they 

require the threats to be “unlawful.” See, e.g., Tex. Penal Code § 36.06(a) (offense 

to “intentionally or knowingly . . . threaten to harm another by an unlawful act” in 

retaliation for public service or to interfere with public service (emphasis added)). 

But the Legislature failed to do so when it last amended and melded Sections 

36.03(a)(1) and 1.07(a)(9)(F) in 1994. For the reasons given above, these 

provisions are unconstitutionally vague on their face, and Count II of Governor 

Perry’s indictment is void and must be dismissed. 

Prayer for Relief 

 WHEREFORE, PREMISES CONSIDERED, Governor Perry respectfully 

prays that this Court affirm the court of appeals’ judgment holding that Section 

36.03(a)(1), as it incorporates the definition of “coercion” contained in Section 

1.07(a)(9)(F), is facially invalid under the First Amendment, either as an 

impermissible content-based restriction or as overbroad. This Court should affirm 

the court of appeals’ judgment or, alternatively, hold that discretionary review was 

improvidently granted because of the court of appeals’ failure to reach Governor 

Perry’s facial vagueness arguments. If this Court reverses the court of appeals 
53 

holding as to Count II, Governor Perry prays that it engage in a de novo review of 

Governor Perry’s facial vagueness arguments since they augment his First 

Amendment facial challenges and thereafter order Count II dismissed. If this Court 

were both to reverse the court of appeals holding as to Count II and decline to 

review the facial vagueness challenge, then this Court should remand the case to 

the court of appeals for its consideration of the facial vagueness challenges. 

Respectfully submitted, 

THE BUZBEE LAW FIRM 

/s/ Anthony G. Buzbee 

Anthony G. Buzbee 

State Bar No. 24001820 

JPMorgan Chase Tower 

600 Travis Street, Suite 7300 

Houston, Texas 77002 

Tbuzbee@txattorneys.com 

Telephone: 713-223-5393 

Facsimile: 713-223-5909 

BAKER BOTTS L.L.P. 

/s/ Thomas R. Phillips

Thomas R. Phillips 

State Bar No. 00000102 

98 San Jacinto Blvd., Suite 1500 

Austin, Texas 78701-4078 

tom.phillips@bakerbotts.com 

Telephone: 512-322-2565 

Facsimile: 512-322-8363 

BOTSFORD & ROARK 

/s/ David L. Botsford 

David L. Botsford 

State Bar No. 02687950 

1307 West Ave. 

Austin, Texas 78701 

dbotsford@aol.com 

Telephone: 512-479-8030 

Facsimile: 512-479-8040 
54 

Certificate of Compliance 

I hereby certify that this document contains 11,072 words in the portions of 

the document that are subject to the word limits of Texas Rule of Appellate 

Procedure 9.4(i), as measured by the undersigned’s word-processing software. 

/s/ David L. Botsford 

David L. Botsford 

Certificate of Service 

This is to certify that a true and complete copy of this document has been 

electronically emailed to Lisa McMinn, State Prosecuting Attorney, Michael 

McCrum, Attorney Pro Tem, and to Mr. David Gonzalez, Assistant Attorney Pro 

Tem on the same date it was electronically filed with the Clerk of the Court of 

Criminal Appeals. 

/s/ David L. Botsford 

David L. Botsford